HQ 084344: Tariff classification of cork and resin ski boot inserts made in West Germany

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 084344

                                    July 31, 1989


          CLA-2 CO:R:C:G  084344 DFC

          CATEGORY: Classification

          TARIFF NO.: 6406.99.90

          Mr. James L. Gregory
          President
          C.F. Liebert, Inc.
          P.O. Box L
          Blaine, Washington 98230

          RE: Tariff classification of cork and resin ski boot inserts
              made in West Germany

          Dear Mr. Gregory:

                Your letter dated April 4, 1989, addressed to our Blaine
          office concerning the tariff classification of a cork and resin
          ski boot insert "insole", half insert "heel cushion", and a
          semicircular heel piece, has been referred to this office for a
          direct reply to you.  Samples were submitted for examination.

          FACTS:

                The samples are not shaped to a particular individual's
          foot size when imported. However, the retailer, who is specially
          trained and has specially designed equipment, will heat the
          inserts and "mold" them around the foot of the wearer. As worn,
          these are "made to measure", but we do not consider them to be
          excluded from Chapter 64, Harmonized Tariff Schedule of the
          United States Annotated (HTSUSA), by reason of Note 1(d) thereto
          as "orthopedic appliances." Their purpose is to keep the foot
          from sliding inside the boot during strenuous athletic activities
          and, thus, to improve the athlete's performance. They are not
          designed to correct any deformity in the wearer's foot. They are
          called in the enclosed pamphlet, "SKI-THOTIC", but they are not
          actual orthotic devices. The pamphlet states that it is "not a
          medical, corrected or corrective device."




















                                         -2-


                It is your position that the samples are classifiable under
          subheading 6406.99.30, HTSUSA, as parts of footwear, removable
          insoles, heel cushions and similar articles, other, other, of
          other materials, of rubber or plastics.

          ISSUE:

                What material imparts the essential character to the
          samples?

          LAW AND ANALYSIS:

                In applying the HTSUSA, the Customs Service must follow the
          terms of the statute. Classification of goods under the HTSUSA is
          governed by the General Rules of Interpretation (GRI's). GRI 1
          provides that "classification shall be determined according to
          the terms of the headings and any relative section or chapter
          notes, and, provided such headings or notes do not otherwise
          require, according to [the remaining GRI's taken in order]." In
          other words classification is governed first by the terms of the
          headings of the tariff and any relative section or chapter notes.

                GRI 2(b), HTSUSA, provides in part that "[t]he
          classification of goods consisting of more than one material or
          substance shall be according to the principles of Rule 3."

                We note that the samples of rubber or plastics are
          classifiable under subheading 6406.99.30, HTSUSA, or under
          subheading 6406.99.90, HTSUSA, if of cork, or under subheading
          6406.99.15, HTSUSA, if of textile materials.  When goods are
          prima facie classifiable under two or more headings or
          subheadings in the HTSUSA, classification must be determined
          based on the sequential application of the principles set out in
          GRI 3, HTSUSA, which reads as follows:

               3. When, by application of Rule 2(b) or for any other
          reason, goods are, prima facie, classifiable under two or more
          headings, classification shall be effected as follows:

                (a)   The heading which provides the most specific
                      description shall be preferred to headings providing
                      a more general description. However, when two or more
                      headings each refer to part only of the materials or
                      substances contained in mixed or composite goods . .
                      . those headings are to be regarded as equally
                      specific in relation to those goods, even if one of
                      them gives a more complete or precise description of
                      the goods.













                                         -3-

                (b)   Mixtures, composite goods consisting of different
                      materials or made up of different components, and
                      goods put up in sets for retail sale which cannot be
                      classified by reference to 3(a), shall be classified
                      as if they consisted of the material or component
                      which gives them their essential character, insofar
                      as this criterion is applicable.

                (c)   When goods cannot be classified by reference to 3(a)
                      or 3(b), they shall be classified under the heading
                      which occurs last in numerical order  among those
                      which equally merit consideration.

                Pieces which are a mixture of cork particles and rubber and
          plastic are the subject of the Explanatory Note (EN) to heading
          45.04, which states that [a]gglomerated cork is manufactured by
          agglomerating crushed, granulated or ground cork generally under
          heat and pressure either: (1) With an added binding substance
          (e.g. unvulcanized rubber, glue, plastics, tar, gelatin) . . ."
          These pieces meet that general description. We assume that there
          is some amount of cork that would be too small a percent of the
          whole for a cork/rubber mixture to be considered "agglomerated
          cork" but we are not of the opinion that is the case here even
          though you state that the material is only 30 percent by weight
          of cork. It is true that the rubber added has allowed the article
          to be shaped or molded. However, following the EN, that is one of
          the standard benefits of agglomerated cork. The EN does state
          that "[a]gglomerated cork retains most of the properties of
          natural cork . . . " The fact that the insole made by joining
          layers of  the material and fabric, is stamped "Superfeet Kork",
          shows that you consider the "cork" aspect to be commercially
          significant, and we agree with that view. The cork is certainly
          the predominant material in appearance and by volume

                The full insole is cut from a laminated sheet of
          agglomerated cork and textile fabric. The only specific
          discussion of this combination  is in the EN to heading 45.04,
          which states that "[a]gglomerated cork of this heading may
          be . . . reinforced by backing with paper or cloth." This
          statement has no application here because the fabric layer is
          present for comfort and moisture absorption, not only as a
          reinforcement. Also, it is not a backing material, but the layer
          that will be exposed in normal use.



















                                         -4-


                In view of the foregoing, the samples are considered
          composite goods within the meaning of GRI 3(a), HTSUSA. Inasmuch
          as we do not consider the agglomerated cork layer, the
          thermoplastic resins or the textile materials as imparting the
          essential character to the samples, we are of the opinion that
          relative specificity is not relevant and GRI 3(c) applies. Since
          subheading 6406.99.90, HTSUSA, appears last in numerical order,
          classification thereunder is  appropriate.

          HOLDING:

                The samples are classifiable under subheading 6406.99.90,
          HTSUSA, as parts of footwear, removable insoles, heel cushions
          and similar articles, other, of other materials, other, with duty
          at the rate of 18 percent ad valorem.

                                     Sincerely,




                                     John Durant, Director
                                     Commercial Rulings Division






































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